The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-15

must substitute his judgment in place of it.
But SO the court must construe away the stat
ute upon which there IL no room for construc-
ton. and substitute some other rule upon the
ground of conscience. l suppose your Honor
would be asked in the proper case to wipe out
the Constitution
Speaking Of Section s Of Article 4, which pro-
vides immunity from arrest and suit to MEM
bers of the Legislature Mr.. Miller said he
thought some Judge ought TO have been called or
some learned gentleman to have shown the fool
ishness of such provision. He then asked
number Of troublesome questions among them
the poser, Suppose Colonel Robertson had
asked an injunction against Green Smith, He
said that in one part of the complaint it was al
governor but that he is dischaging the functions
of that office, and in another part that Colonel
Robertson is dischargiug its functions though
without right, and Jason Brown, who has the
distinctly stated the proposition that the plant
if is in possession of this Office. II submit to
the gentlemen whether there is any law here or
anywhere whereby an officer in possession can
maintain quo warranto against person out of
possession. The trouble about this case is that
If Green Smith is in possession he cannot main
tain quo warranto. and if out of possession or in
possession he cannot maintain injunction, which
involves the right or title to the Office. The
whole theory of quo warranto is to inquire by
what authority, by what warrant, he is exercis-
ing the functions of Office / take it that so
long as I do not 60 into an Office quo warranto
does not hold against me.
"Mr. Green Smith alleges IN his affidavit that
he is afraid OF breach of the peace, OF violence
on the part of Colonel Robertson Now that is
his averment Colonel Robertson is law-abid-
ing citizen He is no bully he is not man who
goes round with revolver in his pocket He
believes in obeying the laws, because they are
the laws, not because of fear. Being thus dis
posed to obey the law he has no fears and no
suspicious of others Colonel Robertson does
not propose to resort to violence. He has been
in obedience to law for three of the best years of
bis life, where it took brave man to CO. and he
has never been for a minute of his life where
law abiding citizen ought not to be- and he does
not propose to begin now. He has no purpose
by clandestne surreptitions means OF going
into the chair of the Senate.
"Mr. Green Smith says he is Lieutenant
governor. douhtif our friends here would try
TO settle that question among themselves if they
would agree upon it. He says he is Lieutenant
governor and entitled to exercise all the rights
of ACKNOWLEDGEMENTS. The Constitution says
that no man exercising one function under the
Law shall perform another function of govern
ment would like to have the gentlemen point
to any provision Of the Constitution which au
thorizes Mr.. Green Smith to exercise any fuDc-
ton Of the Lieutenant governor What is the
necessity for this proceeding in any event,
when Colonel Robertson says he has
no purpose to preside over that assem-
bly,. unless it can be done in
peaceable and orderly way. oh, but says
Mr.. Green Smith, i will be deprived of my pay
and emoluments.' How much in the way of pay?
His regular salary is Sc day. and the per diem
of the presiding officer the Senate, when in
| actual service, is So day. Mr.. Smith, in the
course of sixty days, is to suffer irreparable in
jury by being deprived of 50 day. Your Honor
| does not know how long Mr. Smith will be Pres
| ident pro tenn. of the Senate They may turn
| him out next Wednesday. Then some other fell
| low may have an injunction suit He is simply
| there at the pleasure of the Senate. They may
| even elect man for tho forenoon and another
| for the afternoon.
| "Section ACTS, Revised Statutes of 1881, pro-
vides that the general election shall be held on
| the first Tuesday after the first Monday in No
| vember, 1882. and biennially thereafter the
| same day; at this election all existing vacancies
in Office, and all offices the terms of which will
| expire before the next general election there
1 after, shall be filed unless otherwise provided
| for by law. Now, unless there is something in
| the Constitution forbidding it, it was the right
and duty Of the people at the last election to fill
| the vacancy caused by the resignation of General
| Manson. 1t Is contended on behalf of the plant
| if that the provision of Sections and 2, Article
5 Of the Constitution, which provides that the
| Governor and Lieutenant-governor shall hold
their Office during the four years, and Section OF
the same article, which provides that the official
| terms of the Governor and Lieutenant governor
| shall commence on the second Monday of Jauu
| airy, 1853. aud every four years thereafter on
/ the same day, for the election of Governor OF
Lieutenant.go governor to fill q vacancy, at any in
| termediate election. It seems to me that this
| srguEant is net we'll founded. 1t must appear
that. unless prohibited. the people have right
to fill avacancy in any Office. By constituting thess
provisions to have reference simply to full and
| regular terms of such officers, there is nothing
in either of them at all contravening the right t.
fill a vacancy in either Office providing an cleo
ton occurs after such vacancy happens. The
| only limitation on the time is Section
of the same article, which provides tina
the Governor and Acknowledgements shall b,
elected at the times and places of choosing mem
bers of the General Assembly. Now, there being
no expressed prohibition against filling the va
cancy in such Office, and as it seems to me TIT
provisions which are said to forbid filling such va
cancy have only reference to general full regula
terms of Governor and ACKNOWLEDGEMENTS ant
not to term of an officer elected simply to fill
vacancy it seems clear that the people had tn
absolute right to elect Lieutenant governor a
the last election. and to have him indicted int
Office"
The court at 5 o'clock, adjourned until
o'clock this morning, at which time Judge Tur
pie will speak, closing the argument
DEMANDING HIS KEYS.